Lying in a witness statement – Contempt of court and custodial sentences

Our series focused on witness statements considers the challenges encountered by practitioners across a range of different dispute resolution specialties while preparing witness evidence. In this blog Phoebe Alexander explores when contempt of court proceedings may be brought against a witness who has included false information in a statement.

A solicitor must advise their clients of the potential implications of signing a document verified by a statement of truth, without believing that the information contained in it is true, including the risk of being found to be in contempt of court.

A statement of truth confirms that the person signing honestly believes the facts stated in the document are true. It also confirms that the person understands that proceedings for contempt of court may be brought against them if they sign the statement dishonestly.

Contempt can be either civil or criminal. Civil contempt is deliberately failing to obey or respect the authority of a court. Contempt can be punishable by fine or imprisonment (known as ‘committal’) and must be proved beyond all reasonable doubt (the criminal standard of proof). In the case of a company, a committal order for contempt can be made against a director or officer of the company (CPR 81.4(3).

Making false statements, or lying, in a witness statement as well as other documents can cross the custody threshold for contempt of court. The key issue is whether the person making the statement knew it was false when they made it.

In AXA Insurance UK Plc v Reid (Rev 1) [2021] EWHC 993 (QB)(a personal injury case) the defendant asserted that they did not know a witness in order to present that person as being unconnected to the parties in the dispute, and therefore able to give an independent account of the facts. It became clear that this was untrue when the claimant found an article published online which showed that the defendant in fact knew the witness very well.

Mrs Justice Eady determined that the defendant had acted deliberately to achieve a gain in the proceedings. The decision in this case was made in April 2021 during the coronavirus pandemic and the court considered whether a custodial sentence would be appropriate given the effect of coronavirus on the prison estate and difficulties faced by those serving custodial sentences as a result. It also considered the party’s early admission that his statement contained untruths amounting to contempt, but the defendant was nonetheless given a custodial sentence of 8 weeks.

Similarly, in North Bristol NHS Trust v White [2022] EWHC 1313 (QB), another personal injury case the claimant was given a custodial sentence for exaggerating the extent of her injuries from cauda equina syndrome. The NHS Trust instructed a surveillance company to video the claimant going about her daily routine without any of the apparent issues she had described in interactions with her experts and to the court in witness statements verified by statements of truth. In this case, Mr Justice Ritchie found that the claimant’s conduct had passed the custody threshold: she had deliberately misled her experts and continued her dishonesty despite the evidence against her, therefore showing no remorse or insight into her actions. Finally, as a consequence her false statements had increased costs in terms of legal fees, surveillance expenses and the court’s time and resources. Against this, Ritchie J balanced mitigating factors such as the claimant’s mental health and the fact that she had a young son. Ms White received a sentence of 6 months’ immediate imprisonment.

Finally, it is important to be aware that contempt proceedings can be brought at any time. Although it is most common for proceedings to be brought after trial (when the court has the opportunity to consider the statements in the context of all the evidence), proceedings can be brought at the pre-action stage. In Jet 2 Holidays v Hughes [2019] EWCA Civ 1858, the claimants (a couple on holiday with their family) provided witness statements supported by statements of truth at the pre-action stage in support of a potential claim for personal injury following food poisoning.

The defendant company reviewed the claimants’ social media accounts and found evidence of them looking well and enjoying their holiday. Although the proceedings had not been commenced, the court decided that dishonest witnesses were capable of interfering with the administration of justice at any stage and could be found in contempt (though the contempt application was not actually successful in this case).

The above cases show the extent to which the courts are prepared to impose custodial sentences on witnesses who lie, and that there are strong public policy grounds for doing so. The key questions for the court to consider are:

• Whether the statement in question was false;
• Whether the false statement interfered or was likely to interfere with the administration of justice in a material respect; and
• Whether, when the false statement was made, the maker did not honestly believe in its truth and knew of the likelihood that making that statement would interfere with the administration of justice.

The message from the case-law is clear: making false statements to the court will be treated seriously and custodial sentences are imposed. It is crucial that clients and their solicitors consider all statements made to the court to ensure the client believes that they are true. They should also be aware that their statements, even in pre-action correspondence, will be scrutinised, and in an adversarial system a statement which is known to be false is likely to be uncovered as such pretty quickly on cross examination.

Further Information

If you have any questions or concerns about the topics raised in this blog, please contact Phoebe Alexander.

About the author 

Phoebe Alexander is an Associate in the Dispute Resolution team. She has experience acting for both corporate and individual clients on a broad range of disputes, including complex multi-jurisdictional litigation involving allegations of fraud and conspiracy, general commercial and contractual matters, and media-related disputes involving reputation and privacy issues.